SYSTRONICS CORP. v. I.N.S.

Now before the Court are cross motions summary judgment by the
defendant, the Immigration and Naturalization Service, and the
plaintiff, Systronics Corporation. Upon consideration of these
motions and the supporting documents, the oppositions and
replies thereto, the entire record and the relevant law, the
Court grants defendant's motion for summary judgment.

BACKGROUND

In 1996 Congress enacted the Illegal Immigration Reform and
Immigrant Responsibility Act ("IIRIRA"), which became
permanently effective on April 1, 1997. After a transitional
period, 8 U.S.C. § 1252 mandated the scope of judicial review
for orders removing aliens from the country. 8 U.S.C.A. § 1252
(West 1999); see also Immigration and Nationality Act § 242.
In particular, 8 U.S.C. § 1252(a)(2)(B)(ii) prohibited review of
any discretionary decision made by the Attorney General in
these matters.*fn1

Facts

On March 17, 1997, the plaintiff, Systronics Corporation,
filed an I-140 petition (Immigrant Petition for Alien Worker)
with the Vermont Service Center ("VSC") of the defendant, the
Immigration and Naturalization Service ("INS"), to classify its
beneficiary, Eddy C. Tsaur, as a multinational executive or
manager under 8 U.S.C. § 1153(b)(1)(C). Systronics alleged that
Tsaur was an executive employee and intra-company transferee
eligible for an immigrant visa to assume the duties as president
and general manager of Systronics. The VSC initially approved
the petition on July 1, 1997.

On August 14, 1998, the VSC received a memorandum from the
American Institute in Taiwan ("AIT"). The AIT is the
quasi-diplomatic United States representative office serving in
Taiwan that functions as a full United States consulate in visa
issuing matters. AIT's memorandum stated that based on
interviews and investigations completed on August 4, 1998, it
had developed material information not available to INS at the
time the VSC approved Systronics's petition which indicated that
Tsaur did not appear to be entitled to status as a multinational
manager or executive. In particular, the memorandum stated: (1)
Tsaur was a self-employed business man who owned both the parent
company in Taiwan, Shaw Fuu Enterprise Co., Ltd., and
Systronics, and it appeared that Tsaur founded Systronics as a
shell corporation for the sole purpose of facilitating Tsaur's
transfer to the United States; (2) Systronics failed to produce
a lease for its headquarters in Reston, Virginia, but instead
produced a sublease showing it paid $370 per month in rent for
offices it shared with its lessor; (3) Shaw Fuu's corporate
license in Taiwan was issued in November 1995, several months
after Systronics was established in June 1995; (4) Systronics
only had two employees, not the four it claimed on its I-140
petition; and (5) Shaw-Fuu would be run by a deputy manager with
six months experience if Tsaur left the company. The AIT
concluded Tsaur did not intend to manage or be an executive of
Systronics, but intended to run Shaw-Fuu instead, and
recommended the petition be denied. Based on this information,
the VSC served written notice on Systronics of its intent to
revoke the approval of the petition, explaining that Systronics
was merely a shell company established for the sole purpose of
accomplishing Tsaur's transfer to the United States.

The notice cited the AIT's report and stated discrepancies
existed concerning: (1) the issues the AIT noted about
Systronics's corporate headquarters; (2) Shaw-Fuu incorporation
date; (3) the number of employees on Systronics's petition still
with the company and Tsaur' role with Systronics; and (4) who
would run Shaw-Fuu. The notice did not specifically address
Systronics's payroll, Joanna Su-Mei Chang's wages or
responsibilities, or Tsaur's job description. The notice also
failed to specifically state the VSC was concerned about the
time Tsaur spent as a multinational manager or executive and
whether Tsaur was employed in a managerial or executive capacity
with Shaw-Fuu.

Systronics filed a five page response alleging, among other
things: (1) Systronics was incorporated in California, and had
not begun operations in the branch office at the time the
petition was filed; (2) since the time of the petition, the
California office had increased its operations; (3) Chang, the
vice president who originally worked in the Virginia office,
moved to California to run east and west coast operations; (4)
the lease issue has no significance and Systronics had obtained
additional space; (5) the issuance of the corporate licence
occurred in 1987; (6) any change in the material information
listed on a corporate licence in Taiwan required an official
registration change and prompted the issuance of a new license,
explaining the November 1995 issue date; (7) Systronics's
revenue in 1997 illustrates a legitimate multi-national
enterprise; (8) the VSC knew two employees resigned, and the
records confirm Systronics still had three employees; (9) the
deputy manager's experience had no relevance on who would run
Shaw-Fuu; (10) the deputy manager has left Shaw-Fuu, but two
other employees with experience will manage the company; (11)
Systronics had expanded in the United States; (12) Tsaur's
family would reside in California, while Tsaur would work in
Virginia; (13) Tsaur would indirectly guide Shaw-Fuu, a
prosperous company; and (14) Tsaur had not established
Systronics as a shell company and the AIT had provided
misleading information, and these issues had been previously
adjudicated by the VSC.

On June 10, 1999, the VSC responded to Systronics's letter,
and revoked the petition, and included numerous reasons to
support this decision. The VSC was uncertain why a Virginia
company, with two or three employees would use a California
mailing address, and noted Systronics's explanation was Chang
ran an affiliate office in California. The VSC also felt the
date of incorporation was not reflected in the 1995 licensure
document. Moreover, the VSC also felt issues remained concerning
Tsaur's status as an executive for the statutorily mandated
period. The size of the staff raised questions concerning
Tsaur's job duties. Furthermore, while the VSC felt Shaw-Fuu's
guidance by a deputy manager with six months experience was
reasonable, it doubted whether Tsaur was employed in a primarily
managerial or executive capacity in Shaw-Fuu. Finally, the VSC
stated, "we are not persuaded that the beneficiary's activities
in the U.S. [sic] would be primarily managerial or executive,
and that he has been employed in a primarily managerial or
executive capacity in the Taiwan company." The decision did not
explicitly cite Systronics's payroll, Chang's wages or
responsibilities (but did state her position with the company),
and Tsaur's job description.

ANALYSIS

The determination of "good and sufficient cause" is committed
to the discretion of the Attorney General because it lacks
precise factual standards for this Court to review.*fn2
Therefore, this Court lacks subject matter jurisdiction to
decide the merits of this case, and the case will be dismissed
under Fed.R.Civ.P. 12(b)(1).*fn3 Decisions that are specified
under the Immigration and Nationality Act to be under the
discretion of the Attorney General are
not reviewable. 8 U.S.C.A. § 1252(a)(2)(B)(ii); see also Matsuk
v. I.N.S., 247 F.3d 999, 1002 (9th Cir. 2001)
(unanimous).*fn4 Even if the matter was reviewable, there is
substantial evidence, such as the Systronics's lease in
Virginia, the location of Systronics in two distinct areas, the
size of Systronics, and the exact duties of Tsaur, to support
the INS's determination that Systronics is a shell company.

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